Equal Pay Act

The Equal Pay Act of 1963 amended the Fair Labor Standards Act, making it illegal to pay different wages to employees of different genders for equal work or jobs requiring equal skill, effort, or responsibility and performed under similar working conditions. The act is essentially a prohibition of discrimination by employers on the basis of sex. Moreover, the act forbids employers from paying workers of one sex at a rate less than that paid to workers of the opposite sex for substantially equal work. This entry describes the law, what it requires, and what exceptions may be acceptable.

The Equal Pay Act applies to employers in industries engaged in commerce or in the production of goods for commerce. The act specifically includes elementary or secondary schools and institutions of higher education, regardless of whether they are public or private or are operated for profit or not for profit. Essentially, the act covers the same employees as the rest of the Fair Labor Standards Act but also covers executives, administrators, and other professional employees who are ordinarily exempted from the Fair Labor Standards Act. At the same time, the act covers most state and local government employees unless they are specifically exempted. Although most cases involve claims by females, the act protects men as well. When different pay is provided for the same work, violations occur each time an employer pays its employees.

Basis for Claims

The Equal Pay Act provides as follows:

No employer having employees subject to any provision of [the act] shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he paid wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions. (29 U.S.C. § 206(d)(1))

A basic theme underpinning the act is the concept of “equal pay for equal work” performed by employees of either sex. To recover under the act, plaintiffs must prove that an employer is paying different wages to employees of the opposite sex for equal work. The act defines equal work by noting that the performance of jobs must require “equal skill, effort and responsibility and which are performed under similar working conditions” (29 U.S.C. § 206(d)(1), 2007). The courts have interpreted the term equal as “substantially equal,” which means that the jobs being compared must be “either closely related” or “very much alike.”

An appropriate comparison of two jobs must be made in light of all the circumstances. The evaluation of whether jobs are substantially equal focuses on the overall job content. Courts ordinarily look beyond job classifications, job titles, and job descriptions to the basic substance of the job being performed. Wage differentials are justified when they compensate individuals for appreciable variations in skills, efforts, responsibilities, or working conditions between otherwise comparable work activities. When claimants establish common core of tasks between two jobs, courts must evaluate whether any additional tasks make the jobs “substantially different.”

In evaluating whether work is equal, skill, effort, and responsibility are factors to be evaluated separately. Each of the factors must be satisfied in order for the equal pay requirement to apply. “Skill” is based on job performance requirements for the positions involved and considers experience, training, education, and ability. “Effort” is based on the physical and/or mental exertion required for a position. “Responsibility” is evaluated in the context of the importance of the job’s duties and degree of accountability involved, such as the responsibility to supervise and direct other employees. “Working conditions” refers to physical working conditions, including surroundings and hazards.

Acceptable Policies

The equal pay standard adopted by Congress under the Equal Pay Act differs from the standard involving a claim that employees performing “comparable” work or work of “comparable worth” or “comparable value” to the employer. Congress expressly rejected a standard of “comparable worth” or “comparable value.” The Equal Pay Act applies only to jobs that are substantially identical or equal and not jobs that are of “comparable value” to the employer.

The Equal Pay Act permits employers to pay different wages for equal work if salaries are made pursuant to seniority systems, merit systems, systems that measure earnings by quantity or quality of production, or pay differentials based on any other factor than sex. Salary differentials based on length of time that employees have worked for employers are permissible, even when there is no formal seniority system in effect and the result may be generally higher salaries for men.

The merit system defense must be grounded in a bona fide merit system. Job descriptions that differentiate between positions but provide no means for advancement or reward based on merit do not constitute a bona fide merit system. Generally, courts require employers to demonstrate objective, written standards.

Employers must validate that they have bona fide incentive systems based on either the amount of work or the quality of work that individuals produce if they seek to rely on a defense based on the quantity or quality of worker production. The quantity test refers to compensation rates of equal dollars per unit. Thus, there is no discrimination if two employees receive the same rate of pay for producing the same product but one receives more total compensation because one produces more of a work product. However, employers may not pay lesser rates per unit to females in order to equalize total compensation among men and women when there is no qualitative difference between the jobs that they perform.

The “factors other than sex” defense is a broad exception encompassing the right of the employer to change and revise its job evaluation and pay system. Basing wages on a sex-neutral objective measure is an example of the “factors other than sex” defense. If a differential in pay would have been the same regardless of an employee’s sex, there is no violation under the act.


Employees may seek to file charges with the Equal Employment Opportunities Commission (EEOC) or may file suit directly in court to enforce the Equal Pay Act. The EEOC may also file suit against an employer for a violation of the act. Jury trials are permitted under the act.

Employees who prove a violation of the Equal Pay Act may be awarded back wages, a sum equal to the amount of the back wages (liquidated or double damages), attorneys’ fees, court costs, and interest. Front pay, back pay extended into the future, may also be awarded to compensate for the continuing loss of employment until job vacancies become available. Courts can award liquidated or double damages at their discretion. Double damages may be disallowed in whole or in part if employers show to the satisfaction of the court that pay differences were made in good faith based on reasonable grounds.

The Equal Pay Act contains a 2-year statute of limitations. However, each time an employer issues a paycheck to a woman for lower pay than a man receives (or vice versa) for performing equal work, a separate act of discrimination occurs and provides a separate basis for liability. The limitations period is increased to 3 years for willful violations. In addition, willful violations may be prosecuted criminally. Conviction can result in fines and for second willful violations, imprisonment.

Jon E. Anderson

See also Equal Employment Opportunity Commission; Title VII

Further Readings

  • Keohane, L. (1997). Universities, colleges and the Equal Pay Act: The Fourth Circuit analyzes a salary dispute in Strag v. Board of Trustees. Campbell Law Review, 19, 333–348. 
  • Perez-Arrieta, A. (2005). Defenses to sex-based wage discrimination claims at educational institutions: Exploring “equal work” and “any other factor other than sex” in the faculty context. Journal of College & University Law, 31, 393–415. 

Legal Citations

  • Equal Pay Act, 29 U.S.C. § 206(d).